Genetic Parenthood Recognized in Israeli Surrogacy Case

I’ve written before that Israel is a major destination for fertility tourism. That makes this story somewhat surprising, though I suspect there’s an explanation that has something to do with Israeli surrogacy law.

In this case an Israeli couple used their own eggs and sperm to create embryos. One was then transferred to the uterus of a surrogate in Georgia. (That’s the country, not the state. I know next-to-nothing about the law of Georgia but I think I remember that this was where the Erickson surrogacy/baby-selling ring sent their surrogates for impregnation. I think that is because the law is very permissive.)

Anyway, once the baby was born the Israeli couple sought recognition (under Israeli law) as parents. The response of the Israeli Interior Ministry is rather startling. It took the position that the man was the father but the woman was not the mother. She had to adopt the child in order to claim parental status. But remember that the man and the woman had exactly the same basis for a claim of parentage–genetic connection to the child.

Now right on its face this looks ridiculous. Talk about a double standard? He gets to be a parent because of his genetic link to the child but she still has to adopt? The trial judge agreed with the parents and rejected the Interior Ministry’s view. No mention of whether there might be an appeal.

But you know, though the Ministry’s position seems odd, there’s really something to think about. The man gets to be the father because we’re quite used to using DNA tests to find fathers. Indeed, this fits comfortably in many ways with historical views of fatherhood.

Motherhood is different. Historically a woman who gives birth is a mother. Of course, the woman who gave birth was also genetically related to the child (pre-IVF). But the key thing was giving birth. That, after all, was (usually) reasonably easy to tell about. What IVF has given us is situations where there are competing potential claims between the woman who gives birth and the woman who is genetically connected. This isn’t the case for men.

Put a different way, what competition is there for the man here? It’s a no-brainer. If it’s his sperm, he’s the father. But for the woman? We’ve got to think about her claim in connection with a potential claim the surrogate might raise. That’s a much harder question. Maybe she is the mother and maybe she isn’t.

This problem isn’t new. It crops up in surrogacy a fair bit. And there’s a flip answer I could give: Both of the parents here are fathers. They each have the same qualification–genetic relationship without pregnancy. That’s the classic father’s position. If you don’t want to have a two father family, then choose between them, I suppose.

At the core here the problem is that much as we would like to have gender equality, the position of men and women vis-a-vis children isn’t identical. There is always a woman who gives birth. You can ignore that contribution and just go with DNA and then it all works out nicely. But if you want to count her contribution as having some bearing on parentage, then it is usually lined up on the “mother/female” side of the line. This in turn means that the woman who provides DNA is somehow less of a parent than the man who provides DNA–because there’s no one else on his (the father/male) side of the line.

As a final note–here’s another sort somewhat related case from Israel, that also echoes what I wrote about yesterday. Here two women had a child together, one providing an egg, the other becoming pregnant and giving birth. Consistent with the first case discussed here the egg provider is recognized as a parent without need of adoption. But her partner is also recognized as a parent (by virtue of giving birth.) This latter point is potentially at odds with the first case discussed here.

“Put a different way, what competition is there for the man here? It’s a no-brainer. If it’s his sperm, he’s the father.”

Not if the woman who gave birth was married, in which case that usually means her husband is the father. That is the outcome you would favor when the woman who gave birth is also the intending parent, using sperm and egg provided by “donors” right?

It’s not unusual to declare the woman who gave birth the legal parent first, and then change who the legal parent is, but it is unusual to do DNA tests unless someone is contesting parenthood. I think the birth certificate should always indicate genetic progenitors so that it can be used to determine relatedness and find siblings and cousins, and legal guardians should be recorded on a separate document if they are different.

You always seem to forget that it’s always a court that makes parenting decisions based on the best interest of the child in each case, according to the judge’s biases and political views, and precedents and laws, of course, but never does anything like genetics or birth trump everything else.

True enough and I was thinking about that exception to the rule and wondering how to fit it in here. I didn’t and you are certainly right to bring it up. There’s lots of discussion elsewhere on the blog about the marital presumption–which is the name for the legal presumption that when a married woman gives birth her husband is the legal father. It has a long history and a complicated present. It remains crucial–I think it is probably the reason that the vast majority of married men are legal fathers. And among other things it does generally mean that where a married woman gives birth using third-party sperm, the husband and not the provider is the father. More recently, her wife might is presumed to be a parent, too, if she lives in a state where the marriage is recognized.

In terms of my personal preferences, I am not a fan of parenthood by intention. Too often action doesn’t match intention. This means surrogacy can pose very difficult questions for me and I’ve written quite a lot about it. I tend to think that the fact of having been pregnant/given birth does count for something.

The role of the best interests of the child is more complicated than you portray and it, too, is something you can find discussed elsewhere on the blog. If there is a custody fight between two legal parents than almost any court will determine the outcome by considering what is in the best interests of the child. But this is not the way a court determines who a child’s legal parents are. If a court did that, it would give no special protection to parental rights–you would only have rights if it was deemed to be in the interests of the child. SO instead the court makes an indepedent decision about who is a parent and only then considers best interests. Now you might way a particular test for who is a parent should be used because it serves a child’s interest. For instance, you might say that a genetic test for parentage is good because it is good for children generally. But the consideration of best interests in that case is removed from any particular child.

I love the idea that they’re both fathers! Though then would that make a woman who both bore and was the genetic mother of a child both a mother and a father? Possibly just another justification for jettisoning official records on sex, and substituting “parent” for mother and father. But then what do you call the bearing woman?

You know, I never thought about the possiblity that the woman who gives birth to a genetically related child could be both mother and father, but why not? What you call the woman who gives birth a a genetically unrelated child is going to be controversial. A surrogate? Some people would only agree to that if she didn’t plan to raise the child. For many people a woman who gives birth to a genetically unrelated child she does plan to raise is a mother. It’s really a bit of a litmus test, what you call her. Will tell us a lot about your general frame of reference.

I think what this reflects is that historically fatherhood has been genetically based and motherhood has been based on caretaking–epitomized by giving birth. That way you can have totally uninvolved men who are still called “father.” Another advantage to having “parent” replace mother/father might be that it would give us a chance to redefine what it means to actually be a parent.

Usually the “bearing woman” is the mother, sometimes she is just providing a womb and is called a surrogate. The social title of “Mother” is given to whoever the child wants to give it to. The legal designation “Mother” should be on the birth certificate and be reserved for the female gamete provider.

I’m not sure if you mean “usually” as in “under the law of most states” or “the law of most countries” or what. It’s really hard to generalize about this (in terms of describing the law, I mean.) The law hasn’t really caught up to practice.

As for who gets the social role of mother, that too varies, but I’m not sure I’d agree that the title is given to whoever the child wants to give it to. The reason I say that is that I think it is conferred in social circles long before the child can articulate anything.

Finally, do you mean that the gamete providers should always be legal parents? That’s a view that has been frequently expressed here, but not by me. It might be a different thing to say that the gamete provider should be listed on the birth certificate.

1) I mean, in practice, the woman that gestates and gives birth is usually, most of the time, the person that ends up being the legal parent. There is no such thing as a “female parent” or “male parent” there are only “parent(s)” who may be male or female and there is a “mother” and a “father” of every person (so far there have been no same-sex conceptions or people created from cloned or synthesized genomes).

2) The social *role* of mother is whoever is feeding and clothing and raising a child with a softness and cuddlyness and unconditionalness that a mother is expected to provide. That could be a sister or an aunt or a neighbor or transgendered nanny, when the actual mother isn’t doing the job. But the social *title* of mother is who a person calls “Mother” once they are old enough to say “mama” , or even before they can articulate that, or much later in life. It’s up to the person who gets the *title* of “Mother.” It might be their step mother, it might be their unknown egg-donor mother, it might be their aunt or neighbor, it might be the woman who raised and nursed them, or who adopted them and hired nannys to raise them. It’s up to the person to decide who to call “Mother.” That’s the social title.

3) Gamete providers should always be listed on the birth certificate as “Mother” and “Father”, but legal parenthood should be determined on a case by case basis according to the best interest of the child. Both documents should be public, so that people always know who people are biologically related to, and also who they are being raised by.

I’m not entirely sure I’m following your languge usage. There are parents and they can be male or female so I don’t see why there isn’t such a thing as a male parent and a female parent. There’s a distinction you are making that I am missing, I think. By male parent I mean a parent who is male. Why isn’t that a reasonable usage?

And do I undertstand that you use “mother” and “father” to be “genetic mother” and “genetic father” as opposed to the more common usage which is sometimes legal, sometimes social and sometimes genetic (and leads to all sorts of misunderstandings.)

I think as long as people are as clear as possible about the way they use language we can use words differently–it just requires a certain amount of translation. That’s why I want to be clear here.

I’d make the same point about your second point. You’ve got a very specific usage in mind for mother. I don’t think it is common, but that isn’t a reason you shouldn’t use it. It does make me wonder whether a man can have the social role of mother in your view? For what it is worth, I don’t think it is entirely up to a child/infant who gets called what. I’ve watched people train their children (and have trained my own children) who gets called what. I suppose they could resist and perhaps they sometimes do. But my experience suggests that these are adult choices that are at least initially imprinted on children. Then again, I’m not sure how much it matters what the child calls people.

I really don’t think it is possible to determine legal parentage for every child based on the best interests of the child. (And I wonder if you would contemplate that the finding is reviewed periodically or if it just gets done once.) We need rules that operate without that kind of individual intervention, I think, for a host of practice reasons.

I don’t think the outcomes of the respective cases are inconsistent at all- it seems that BOTH pregnancy and genetics can be a legitimate case for parenthood- as long as their are no competing claims against it, there is no need to choose one over the other.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.